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How do you score OV 12 and OV 13 for a conspiracy offense?

Question as originally presented: I’m scoring 2 offenses: conspiracy to commit CSC-1st degree and conspiracy to commit kidnapping. I'm uncertain how to score the OVs since the offenses were planned but were never carried out. The offenders were arrested before they were able to execute their plans. The scenario is 4 people conspired to take a minor from our local fair, abduct her, sexually assault her, physically assault her and eventually kill her. My confusion is what OVs I can score. For the 1st offense, I scored OV 12 at 25 points and OV 13 at 25 points - is this correct?

When you are scoring a conspiracy offense, MCL 777.21(4)(a) instructs that you determine the OV level by “scoring the offense variables for the underlying offense and any additional offense variables for the offense category indicated in [MCL 777.18].” MCL 777.18 says that the offense category for conspiracy is public safety. The offense category for both CSC-I and kidnapping is person. MCL 777.16q; MCL 777.16y. MCL 777.22 instructs to score offense variables 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 19, and 20 for crimes against a person, and to score offense variables 1, 3, 4, 9, 10, 12, 13, 14, 16, 19, and 20 for crimes against public safety. Accordingly, you should score all of those OVs, but some of them might be scored at 0 points if the facts of your case do not support a higher score.

Regarding OV 12 and OV 13 specifically:

OV 12 is scored for contemporaneous felonious criminal acts. MCL 777.42. If there are three or more contemporaneous felonious criminal acts involving crimes against a person, 25 points should be scored. In order to satisfy the definition of contemporaneous felonious criminal act, the act must have occurred within 24 hours of the sentencing offense and it must not result in a separate conviction. MCL 777.42(2)(a). Based on the facts that you have provided – that the defendant planned these crimes but did not actually carry them out – there are not facts to support scoring OV 12 at 25 points because the only criminal acts that occurred within 24 hours of the sentencing offense are the sentencing offense and the other conspiracy offense for which the defendant was convicted, and neither of those offenses meet the definition of contemporaneous criminal act under OV 12. When scoring OV 12, you have to “look beyond the sentencing offense and consider only those separate acts or behavior that did not establish the sentencing offense.” People v Light, 290 Mich App 717, 723 (2010). Further, the criminal acts must be crimes against a person to score 25 points, and conspiracy is a crime against public safety. MCL 777.42(1)(a). So unless there are more facts showing that contemporaneous felonious criminal acts were committed that you have not provided in your question, OV 12 should be scored at 0 points. 

OV 13 is scored for a continuing pattern of criminal behavior. Under OV 13, you are allowed to count the sentencing offense, and any other crimes within a period of five years. MCL 777.43(2)(a). You may also count “multiple concurrent offenses arising from the same incident” when scoring OV 13. People v Gibbs, 299 Mich App 473, 487-488 (2013). However, under the facts you have provided in your question, there is no evidence of a continuing pattern of criminal behavior under OV 13.  You can score 25 points for either a pattern related to gang membership or for being “part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” I’m assuming you scored 25 points based upon 3 or more crimes against a person; however, the fact that the defendant planned to commit several crimes against a person is not the same thing as actually committing those crimes, so the facts you provided do not support a score of 25 points. Further, conspiracy is a crime against public safety, and cannot be considered a crime against a person for purposes of scoring OV 13. See People v Bonilla-Machado, 489 Mich 412, 415-416, 422 (2011).

Tags: OV 12 OV 13

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